State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: September 29, 2016 522418 

________________________________

In the Matter of the Claim of 

ANTHONY COLASANTI,

Appellant,

v

MEMORANDUM AND ORDER

CON EDISON et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: September 6, 2016

Before: Peters, P.J., McCarthy, Lynch, Rose and Clark, JJ.

__________

Law Office of Joseph Romano, New York City (Nicholas

DiSalvo of counsel), for appellant.

Cherry, Edson & Kelly, LLP, Tarrytown (Ralph E. Magnetti of

counsel), for Con Edison and another, respondents.

__________

Rose, J.

Appeal from a decision of the Workers' Compensation Board,

filed April 6, 2015, which ruled, among other things, that

claimant was not entitled to a schedule loss of use award for a

period during which he was previously receiving an indemnity

award at the maximum rate for a permanent partial disability.

Claimant, a mechanic for the employer, has an established

claim for bilateral carpal tunnel syndrome to both hands as an

occupational disease, with a date of disablement of November 10,

2005. A Workers' Compensation Law Judge determined that claimant
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had a schedule loss of use (hereinafter SLU) of 20% to each hand,

equal to 97.6 weeks of compensation, payable to claimant at

either the temporary total or permanent partial disability rate

of $400 per week from November 10, 2005 through September 25,

2007. The employer appealed, objecting to claimant receiving

concurrent indemnity awards for the same time period for this and

another unrelated claim, which it argued exceeded the statutory

maximum award provided by Workers' Compensation Law § 15 (6). 

The Workers' Compensation Board, among other things, upheld the

determination that claimant had a 20% SLU to both hands. The

Board modified the SLU award, ruling that because claimant had,

during the same time period covered by this SLU award (with two

exceptions), previously received the maximum weekly benefit award

of $400 for another permanent partial disability resulting from

an injury to his shoulder and neck, he is "not entitled to

further indemnity awards [for this SLU] for the period during

which he previously received [permanent partial disability]

awards . . . at the maximum weekly benefit rate of $400." 

Claimant now appeals.

As the Board recognized, this Court has held that

"concurrent payments for schedule and nonschedule awards may not

exceed that maximum rate where the nonschedule award arises from

a permanent disability" (Matter of Sciame v Airborne Express,

Inc., 101 AD3d 1419, 1420 [2012], lv denied 20 NY3d 860 [2013];

see Matter of Schmidt v Falls Dodge, Inc., 19 NY3d 178, 183

[2012]). However, after the Board issued its decision here, this

Court recognized that "under Workers' Compensation Law §§ 15 (3)

(u) and 25 (1) (b), as amended in 2009, where there is a

permanent partial loss of use of more than one member or body

part, the award 'shall be fully payable in one lump sum upon the

request of the injured employee'" (Matter of Walczyk v Lewis Tree

Serv., Inc., 134 AD3d 1364, 1366 [2015], lv denied ___ NY3d ___

[Sept. 13, 2016], quoting Workers' Compensation Law § 15 [3]

[u]). Payment of the SLU award "is not allocable to any

. . . period of disability" and payment of the SLU award in a

lump sum, as an alternative to periodic payments, will not

violate the maximum disability rate provided by Workers'

Compensation Law § 15 (6) (see Matter of Walczyk v Lewis Tree

Serv., Inc., 134 AD3d at 1366 [internal quotation marks,

brackets, emphasis and citations omitted]). While it is not
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clear whether claimant requested that the SLU award be paid in a

lump sum, he now does so. Accordingly, the matter must be

remitted to the Board for purposes of calculating the lump-sum

award, minus payments already made, and for further proceedings

as directed by the Board's decision.

Peters, P.J., McCarthy, Lynch and Clark, JJ., concur.

ORDERED that the decision is modified, without costs, to

the extent that it ruled that claimant is not entitled to further

indemnity awards for the period during which he previously

received permanent partial disability awards for another claim,

and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court